Homeland Security: Law and Practice

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Homeland security refers to collective national effort to provide protection based on threat analysis of domestic infrastructure and institutions whose vulnerability endangers both the civilian life and property. This also entails measures to reduce and minimize the damage from the aftermath of attacks if they occur. It is a strategy that has been widely adopted within the United States government agencies because of various terrorism attacks.

The idea came as a result of the federal government and the U.S congress reaction due to the September 11 terrorism attacks, although measures were initiated even long before the attacks. Homeland security is still evolving and modernizing to adapt to new changes, threats, and challenges; it will continue to change in reaction to the strategies taken to minimize the impacts of known hazards while both existing and new threats are identified.

For the strategy to achieve the desired goals there will be need for cooperation between the federal government, organizations, businesses, individuals and each community working together (Bullock, Haddow, and Coppola 2). Before the September 11 terrorist attack, the centralized government was concerned with cold war combat designed from the national security Act of 1947. The terror attacks on September 11 were among the organized and coordinated waves of attack on US soil made the American government to have a sense of unease and trepidation that there would be another attack. All these were at some point considered looming threats that trickled down from Clinton’s administration, although it was already known that the US was facing real time threats from the Al-Qaeda terrorist group.

The exclusionary rule prohibits acquisition of evidence from terrorists through torture. Here, the court is obligated to exclude any evidence based on being acquired through unlawful means including torture (Frías and White 31). Bush administration called for the creation of an executive branch that was referred to as the Department of Homeland Security in early October 2001. This department was to be responsible for national security and defending the nation from its enemies. It would coordinate other agencies such as the coast guard, U.S border patrol, and Immigration and naturalization service, Federal Emergency Management Agency (Ball 16). On October 2001, President Bush signed the USA Patriotic Act, which covered numerous issues such as enhancing domestic security against terrorism.

The Act also provided federal agencies with authority to track and acquire information through wire-tapping as well as from other means of communications in order to counter any acts that could threaten the peace of the country through such means like terrorism. Border patrol was enhanced through increased number of border patrol personnel, while the Immigration department was granted access to information records of visa applications and other applications for residents of the United States. This Act also strengthened the criminal laws against terrorism in that, it prohibited persons from harboring aliens, seizure of assets from foreign terrorist organizations. It also improved greatly the intelligence of the agency with regard to foreign intelligence collected, foreign terrorist tracking asset tracking center and national virtual translation center providing training for government officials regarding identification and use of foreign intelligence (Ball 19)

The purpose of the legislation was to pursue, defeat, and bring the terrorist organizations to justice with regard to preventive action against the American enemies striking back. The Patriotic Act made it easier for the US government to investigate the citizens who might have connections to terrorists. With one general permit, the government would track personal communication through either telephone or electronic mail. Many of the new provisions fell under FISA laws, which would provide permission for conducting terrorist related searches Gonzales 95).

In relation to the language of the fourth amendment, the exclusionary rule does provide exceptions where evidence may be declared invalid if it was acquired through irrational or unlawful searching of a person’s property and seizing his or her possessions. The fourth amendment provides that people have to continue enjoying their privacy while their possessions must be secure. In this case, a police officer cannot, even with the consent of the owner, enter into the property of another person and demand a search without a valid search warrant.

In addition, the person has the right to deny the police any attempt to take away any item in his/her possession unless the warrant so provides and with reasonable grounds. However, in cases where the police access information from persons through third party and that information is sufficient to serve as evidence, there are grounds for consideration about how that information was acquired and whether it will be used in court; indeed, such a search is not related to the fourth amendment and it does not require a search warrant. For instance, in the case of information appearing in public view such as in a vehicle or on top of envelop, the person may not claim of violation of privacy.

Other exceptions a person does not have reasonable expectation of privacy is in an event where there is likely to be danger to the society, a situation normally referred to as ‘probable cause’. In this case, the police may demand a search and even seize evidence if they feel that there is probable cause for danger, for example when pursuing a terrorist or a robber. Such circumstances are also included in the exigent circumstances exception where the police are required to act quickly to certain matters that are of public interest and seize evidence without the requirement of a search warrant.

Although the exclusionary rule provide that any evidence collected without valid search warrant or without proper cause should be excluded from being used as evidence against a defendant, there are exceptions. For instance, a police may carry out a search using an invalid search warrant but without their knowledge that such warrant is invalid; here, the judge will have to establish whether the police actually acted in good faith or such a search warrant had faults that could not be identified on the face value by the holder.

The exclusionary rule plays a big role in protecting the defendant from unlawful or illegally acquired evidence. This is evidenced by various cases that have been determined over the years with the help of exclusionary rule. For instance, the case of Smith vs. United States dismissed evidence produced by a witness due to the fact that his statement came about from information collected from defendants who had been illegally detained. Indeed, the lower court had earlier dismissed the confessions of the defendants based on the method used by police to acquire such confessions. In another case, Weeks vs. United States of 1914, the court excluded evidence seized by police from an illegal search that was not warranted (Criminal procedure 621).

In another case, United States vs. Goldstein, the witness evidence was excluded for the reason that the witness was induced to provide evidence based on the information seized from wire-tapping that connected the witness to the defendant (Criminal procedure 623). The court established that such information received from wire-tap could not be admissible in the court, as the police did not have the authority to tap wired information from the defendant. Nevertheless, under Federal Rule 5 of Criminal Procedure prohibits admission of confessions from a defendant who has been wrongfully or illegally detained. This is evidenced by the case of McNabb Vs United States of 1943, where confessions by the defendant was excluded due to the reason of being acquired while the defendant was unlawfully detained (Criminal Procedure 623)

The exclusionary rule is a vital tool for judicial procedure in the country. However, there are areas that need clarity and consensus, while other areas need a complete overhaul. Generally, the rule is constitutional in its current form and is guided by the fourth amendment. However, it provides grounds for misguided justice to the complainants due to exclusion of vital information based on unlawful acquisition. For instance, what happens on a case of wire-tapping information related to terrorist attack? In additional what happens to information acquired through torture and it leads identification of actual perpetrators of terrorism. Therefore, the important point here is creating a balance between human security and right to life.

Works Cited

Ball, Howard. U.S Homeland Security. California: ABC-CLIO Inc., 2005. Print.

Bullock, Jane, George, Haddow & Damon, Coppola. Introduction to Homeland Security. Walthum, MA: Elsevier Inc., 2012. Print.

“Criminal Procedure: Circuit Court Refuses To Extend “Poison Fruit” Doctrine to Testimony of Witness Discovered As A Result Of Illegal Detention.” Duke Law Journal 13.3 (1964): 620-629. Web.

Frías, Ana, and N. White. Counter-Terrorism: International Law and Practice. Oxford: Oxford University Press, 2012. Print.

Gonzales, Doreen. A Look at the Fourth Amendment: Against Unreasonable Searches and Seizures. New York: Enslow publishers Inc., 2007. Print.

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Homeland Security: Law and Practice

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